The U.S. Department of Labor (DOL) issued an opinion letter on May 28, 2026, addressing whether a public hospital’s timekeeping practices violated federal wage-and-hour law. The letter analyzes whether the employer’s treatment of pre-shift activities and waiting time, the application of the de minimis doctrine, and the rounding policy complied with the Fair Labor Standards Act.
Rounding Policies and Pre-Shift Work Without Compensation
The DOL’s Opinion Letter FLSA2026-8 addressed four questions submitted by a hospital non-exempt employee. According to the opinion, the employer hospital uses a rounding system for clock-ins where employees are given flexibility to clock in up to seven minutes early or seven minutes late. The timekeeping system is set to round clock-in times to scheduled shift times: for example, 6:53 a.m. rounds to 7:00 a.m. or 7:07 p.m. rounds to 7:00 p.m. Due to the limited number of timekeeping stations, this practice was apparently intended to mitigate delays caused by bottlenecks at the stations. It is common at the hospital for non-exempt employees, such as respiratory therapists, to regularly engage in pre-shift work activities immediately after clocking in before their scheduled shift begins. The hospital does not compensate employees for this work.
The employee inquired whether:
- Certain pre-shift work was compensable as “hours worked” under the FLSA.
- Time spent waiting due to timekeeping station bottlenecks is compensable work time.
- The hospital can invoke the de minimis doctrine based on time-rounding practices that result in some compensable work not being paid.
- The rounding policies comply with the requirements for neutral rounding practices.
DOL Clarifies Criteria for Rounding and Compensable Pre-Shift Activities
The DOL noted that pre-shift work is only compensable if the employee actually engages in activities that are “integral and indispensable to their principal job duties.” For example, a respiratory therapist who clocks in and locates work assignments or immediately reviews reports on patient status is performing an indispensable duty because they cannot begin work without identifying their patients or understanding their needs. By contrast, pre-shift work is not compensable when an employee engages in an activity unrelated to their job — such as waiting in line to clock in — because it is not integral to the work the employee was hired to perform.
The DOL also concluded that pre-shift work is unlikely to be de minimis because an employer cannot arbitrarily fail to count hours worked as part of an employee’s regular working time. However, the practical administrative difficulty of recording time may justify treating it as de minimis, since it may not be feasible for the employer to record the exact time each employee begins their first principal activity. For instance, some employees may start their compensable duties while others may engage in personal activities, such as socializing or checking phones. The DOL advises that, given technological advances, employers should expect exacting scrutiny of de minimis claims when employees perform regular off-the-clock work. The regular nature of even a small amount of work precludes the time from being considered de minimis.
The rounding policy standing alone would not be objectionable. It violates neutral rounding practices only if employees are performing principal activities during the pre-shift work time that is lost to rounding. If employees are performing compensable work, the hospital’s rounding policy is not neutral because it benefits the employer without benefiting the employee. This would be tantamount to an arbitrary failure to count hours worked, no matter how small. A rounding policy is facially neutral if it allows employees to benefit from the rounding in other circumstances, such as when employees who clock in seven minutes late are credited with starting their shift earlier.
Bottom Line
Compliance with the FLSA depends on whether compensable pre-shift work occurs. Employers should ensure rounding policies do not disproportionately favor the employer or exclude unpaid work, prevent off-the-clock work, and remind employees regularly of these rules.
Harris Beach Murtha’s Labor and Employment Practice Group will continue to monitor this issue and report on new developments. If you have questions or need assistance with this or other labor matters, please reach out to attorney Salvatore G. Gangemi at (203) 653-5436 and sgangemi@harrisbeachmurtha.com, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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